Detherow v. State , 476 S.W.3d 155 ( 2015 )

Cite as 2015 Ark. 447
SUPREME COURT OF ARKANSAS
No. CR-15-256
TERRY DETHEROW Opinion Delivered December 3, 2015
APPELLANT
PRO SE APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-12-2256]
STATE OF ARKANSAS HONORABLE LEON JOHNSON,
APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 2013, appellant Terry Detherow was found guilty by a jury of manslaughter and third-
degree battery. He was sentenced as a habitual offender to an aggregate term of 540 months’
imprisonment. The sentence for manslaughter was enhanced for use of a firearm pursuant to
Arkansas Code Annotated section 16-90-120 (Repl. 2006). The Arkansas Court of Appeals
affirmed. Detherow v. State, 2014 Ark. App. 478, 444 S.W.3d 867.
Subsequently, Detherow timely filed in the trial court a verified, pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), claiming that
he was denied effective assistance of counsel. The trial court denied the petition, and Detherow
brings this appeal.1
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In his brief on appeal, Detherow has restated some of the issues raised in the petition
filed below and in some instances reworded his arguments. On appeal, an appellant is limited
to the scope and nature of the arguments he made below and that were considered by the circuit
court in rendering its ruling. For that reason, we will consider only those argument in the brief
that were raised below and the support for those claims that appeared in the petition. Feuget v.
State, 2015 Ark. 43, at 8, 454 S.W.3d 734, 740 (2015). Any allegation raised below that is not
argued in this appeal is considered abandoned. See Sims v. State, 2015 Ark. 363.
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We do not reverse the grant or denial of postconviction relief unless the trial court’s
findings are clearly erroneous. Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 802. A finding is
clearly erroneous when, although there is evidence to support it, the appellate court, after
reviewing the entire evidence, is left with the definite and firm conviction that a mistake has
been committed. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.
We assess the effectiveness of counsel under the two-prong standard set forth by the
Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Sartin v.
State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that
counsel’s performance was deficient. Id. This requires a showing that counsel made errors so
serious that the petitioner was deprived of the counsel guaranteed to the petitioner by the Sixth
Amendment. Id. Second, the deficient performance must have resulted in prejudice so
pronounced as to have deprived the petitioner of a fair trial the outcome of which cannot be
relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are
necessary before it can be said that the conviction resulted from a breakdown in the adversarial
process that renders the result unreliable. Lemaster, 2015 Ark. 167, 459 S.W.3d 802.
Detherow was originally charged with first-degree murder in the death of John Mosley
and first-degree battery of Charles Wilmoth following a shooting at an outdoor party in Pulaski
County attended by more than one hundred adults and children. Evidence adduced at trial
reflected that Detherow had brought a gun to the party and had shot the gun into the air when
he was asked to leave. When Wilmoth tried to take the gun from Detherow, Wilmoth and
Mosley were both shot. Detherow testified that he did not intend to hurt anyone and pulled the
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gun only because he felt threatened. The jury entered guilty verdicts on the lesser- included
offenses of manslaughter and third-degree battery.
Detherow raises three issues on appeal. He first argues that counsel was remiss in not
objecting when the trial court instructed the jury, pursuant to Arkansas Code Annotated section
5-4-702(a) (Supp. 2011), that the offenses were committed in the presence of children because
the presence of children was not an element of manslaughter. He further contends that counsel
should have objected when the jury returned a verdict reflecting its decision that the offenses
had been committed in the presence of children. He also contends that the trial court
wrongfully tried to “etch” into the jurors’ minds that children had witnessed the shootings.
In the guilt phase of Detherow’s trial, the jury considered first-degree murder and lesser-
included offenses, including manslaughter. The jury was instructed that the sentence was subject
to an enhancement of 180 months’ imprisonment for use of a firearm. It was also erroneously
instructed in that phase that, if the jury found that Detherow was guilty of manslaughter, it must
also decide whether the offense occurred in the presence of a child. The instruction was not
proper because we have held that the offense of manslaughter is not subject to enhancement for
having been committed in the presence of a child. Hart v. State, 2014 Ark. 250.
While the erroneous instruction regarding the offense being committed in the presence
of a child was given in the guilt phase, in the penalty phase of the trial, there was no instruction
on the offense being committed in the presence of a child, and the verdict form did not provide
for enhancement on that basis. Accordingly, in the penalty phase, the jury did not consider the
issue of whether children were present. The jury affixed Detherow’s sentence at 360 months’
imprisonment for manslaughter committed by a habitual offender with four or more prior felony
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convictions. See Ark. Code Ann. § 5-4-501(b)(2)(D) (Supp. 2011) (with four or more prior
felony convictions, the sentence range for a Class C felony is three to 360 months). The jury
also found that the sentence should be enhanced for use of a firearm. As the sentence and
enhancement were not outside the range for the offense and the enhancement, the sentence was
not illegal. See Hart, 2014 Ark. 250.
To establish that counsel’s representation was ineffective under the Strickland standard,
the petitioner has the heavy burden of showing that counsel’s performance was so deficient that
it resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose
outcome cannot be relied on as just. See Wainwright, 307 Ark. 569, 823 S.W.2d 449. Here, the
jury was misinstructed in the guilt phase of the trial, but it was properly instructed in the penalty
phase and affixed a sentence within legal limits. The issue is therefore whether the petitioner
was prejudiced by counsel’s failure to object in the guilt phase to the erroneous instruction.
As stated, when considering whether a petitioner was prejudiced by counsel’s conduct
under Rule 37.1, we consider the totality of the evidence before the judge or jury. Sims v. State,
2015 Ark. 363. The evidence adduced at trial established that Detherow was the initial aggressor
who struck one man with his fist, shot his gun into the air, and then shot Wilmoth, who was
attempting to wrest the gun away from him. Detherow then shot Mosley, who was not touching
either Detherow or the gun. Also before the jury was evidence that Detherow had been found
guilty of multiple prior felonies. Considering the totality of the evidence and the fact that the
jury found Detherow guilty of the lesser-included offense of manslaughter, we cannot say that
there is a reasonable probability that the outcome of the trial would have been different had the
jury had been correctly instructed in the guilt phase.
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Detherow’s second point for reversal of the order is not clear. He argues that the trial
court erred by ruling on issues raised in his Rule 37.1 petition because “these were not issues
requiring a ‘Ruling’ in my Rule 37 Petition; rather, the issue was whether or not my attorney, Mr.
James, was ineffective for not raising the specific issues for a Ruling before Trial.” Detherow
faults the trial court for issuing rulings “after the fact.” As an example of the trial court’s error,
Detherow asserts that, when ruling on the allegation raised in his petition that counsel should
have sought a change of venue, the court had an “agenda” under which the court assumed there
was no prejudice to the defense when it could not know for certain that there was no prejudice.
Detherow has not stated a ground for reversal of the order because the allegation is too
vague to constitute a showing of ineffective assistance of counsel under Strickland. When an
appellant offers vague assertions of error with no citation of authority, we have no basis to grant
relief. Davis v. State, 345 Ark. 161, 172, 44 S.W.3d 726, 732 (2001). Clear and convincing
argument is necessary before this court can conclude that the lower court erred in its ruling. See
Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
In his final issue on appeal, Detherow contends that the trial court erred when it failed
to appoint counsel to represent him in the Rule 37.1 proceeding. The trial court has the
discretion to appoint counsel under the Rule. Ark. R. Crim. P. 37.3(b) (2015). Detherow cites
Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013) in support of his
argument that counsel should have been appointed in his case, but we have rejected the
argument that Martinez and Trevino require appointment of counsel. Mancia v. State, 2015 Ark.
115, at 26, 459 S.W.3d 259, 275.
Moreover, while Detherow filed a motion for appointment of counsel in the trial court,
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he did not raise the question of whether Martinez and Trevino should apply to his proceeding.
The trial court did not have the issue before it, and we do not consider issues that are raised for
the first time on appeal. Id.
Affirmed.
Terry Detherow, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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